The Issue This is an appeal from a resolution of the Monroe County Planning Commission ("Planning Commission") approving the decision of the Monroe County Planning Department to deny the application of the Appellants, Robert and Ruth Stoky ("the Stokys"), for a building permit for an "after-the-fact replacement of a 400-square-foot sign." The instant appeal was transferred from the Planning Commission to the Division of Administrative Hearings pursuant to Article XIV, Monroe County Code, the Hearing Officer Appellate Article, and Monroe County ("the County") has appeared as the Appellee in this case. The ultimate issue presented in this appeal is whether Resolution No. P80-99 of the Planning Commission should be affirmed, reversed, or modified.
The Issue The issues in this case are whether there was a structural change in Petitioner's sign, and whether the Department of Transportation's Notice of Intent to Revoke Sign Permit for violating Florida Administrative Code Rule 14-10.007(2) should be affirmed.
Findings Of Fact Lamar is a company which owns and maintains hundreds of road-side signs or billboards within the State of Florida. One such billboard (referred to hereinafter as the "Sign") is located on U.S. Highway 27 approximately eight-tenths of a mile south of Highway 17-92, just south of Haines City in Polk County. The Sign is assigned Tag No. BH378. The Sign was purchased by Lamar from Prime Outdoor in December 2004. At the time it was purchased, the Sign was a single-faced, wooden structure. When the Sign was originally constructed (in the late 1960's), the supports for the Sign were made of one and one-half by one and one-half (1 1/2 x 1 1/2)-inch angle iron. The DOT database indicates the Sign was constructed as a steel, single- faced structure. Pictures of the Sign as it appeared in 1997 show the steel A-frame construction of the supports. When Lamar decided to purchase the Sign, its real estate leasing manager (David Henry) investigated the status of the Sign. Henry accessed the DOT website to determine the status of the Sign. He also physically inspected the Sign to see whether it was in compliance with state and local regulations. His findings were that DOT records showed the Sign to be made of steel construction, but his visual inspection revealed wooden support posts in place of the steel A-frame construction. Henry knew the Sign had been damaged during the 2004 hurricane season. The Sign had been rebuilt by the time Lamar purchased it in December of that year. The Sign was reportedly rebuilt as part of a global settlement between DOT and the various sign companies whose properties had been similarly damaged during the storms; however, the settlement agreement authorizing reconstruction was not signed until February 2005.1 Inasmuch as Lamar owned another sign nearby, Henry was aware of what the Sign looked like both before and after the hurricanes had damaged it. At the time of the purchase, Lamar was not aware of any actions being taken by DOT due to alleged violations concerning the Sign. Notice of a violation was not issued until 2006. The basis of DOT's proposed revocation was that the Sign had been modified in violation of Florida Administrative Code Rule 14-10.007(2) by: (1) changing structural materials from steel to wood and (2) changing the Height Above Ground Level of the Sign. The second basis for revocation was withdrawn before final hearing, and only the first basis is at issue. There is no dispute that the Sign was originally constructed with a steel A-frame design for its supports but was re-constructed with wooden poles as its support. The A-frame construction was not utilized during re- construction for two reasons: First, the angle iron used in the original construction is no longer available. The A-frame design was borne of technology from the early 1960's and has proven inferior to new design and materials. Second, the A- frame design would not meet the wind-resistance requirements extant in today's world. The Notice filed by DOT directed Lamar to provide information to DOT within 30 days as to whether (1) Lamar believed the Notice was issued in error or (2) the violation had been corrected. Lamar did not respond concerning either of the two alternatives. The Notice provided it would become final in 30 days unless Lamar responded as set forth above or contested the revocation by way of an administrative hearing.2 Lamar availed itself of the Chapter 120, Florida Statutes, option and filed a Petition for Formal Administrative Hearing. In the de novo final hearing, Lamar presented its rationale as to why the Notice was issued in error, i.e., that Lamar was allowed to change the supports in order to comply with local and state building codes. The post-2004 hurricane season settlement agreement entered into by DOT and Lamar allowed reconstruction of signs damaged by that year's storms. The agreement specifically states, "Exceptions to pre-storm specifications will be allowed to the extent required to comply with local building codes." The angle iron construction of the Sign would not, according to Lamar's witness, meet current wind-storm requirements in the local building code. However, the building code itself was not offered into evidence, and the sole witness presented by Lamar was not offered as an expert to testify concerning the building code.3 DOT provided examples of how certain metal supports could have been utilized in place of the old, outdated metal A- frame used in the original design. That is, wood was not the only alternative available to Lamar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation revoking the Permit No. 7478 for Tag No. BH378 and requiring removal of the Sign within 30 days. DONE AND ENTERED this 26th day of March, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2008.
The Issue The issues in this case are whether the Department of Transportation properly issued a Notice of Violation for an illegally erected sign to Lamar of Tallahassee and whether the Petitioner's applications for a sign maintained at the corner of SR366/West Pensacola Street and Ocala Road, in Tallahassee, Leon County, Florida, should be granted as a non-conforming sign or because the Department did not act on either the 2005 or 2007 application for the same sign in a timely manner.
Findings Of Fact Under Chapter 479, Florida Statutes, the Department is the state agency responsible for regulating outdoor advertising signs located within 660 feet of the state highway system, interstate, or federal-aid primary system. Lamar owns and operates outdoor advertising signs in the State of Florida. On March 15, 2005, Lamar applied for a permit from the Department to erect the subject sign. The permit was denied because it was within 1,000 feet of another permitted sign owned by Lamar that is located on SR366/West Pensacola Street. The review process for Lamar’s application for a sign permit involved a two-step process. Initially, Mr. Strickland, the State Outdoor Advertising Administrator, reviewed Lamar’s application. He determined that the sign was within 1,000 feet of another permitted structure. On April 12, 2007, he preliminarily denied Petitioner’s application, prepared the Notice of Denied Application reflecting a denial issuance date of April 12, 2005, and entered his preliminary decision on the Department’s internal database. On the same date, Mr. Strickland forwarded the permit file along with his preliminary decision and letter to his superior, Juanice Hagan. The preliminary decision was made within 30 days of receipt of Lamar’s application. Ms. Hagan did not testify at the hearing. However, at some point, Ms. Hagan approved Mr. Strickland’s preliminary decision and entered the official action of the Department on the Department’s public database. That database reflects the final decision to deny the application was made on April 20, 2005, outside of the 30 days of receipt of Lamar’s application. On the other hand, Ms. Hagan signed the Notice of Denied Application with an issuance date of April 12, 2005. Her signature indicates that her final approval, whenever it may have occurred, related back to April 12, 2005, and was within 30 days of receipt of Lamar’s application. Lamar received the Department’s letter denying its application, along with the return of its application and application fee. The letter contained a clear point of entry advising Lamar of its hearing rights under Chapter 120, Florida Statutes. However, Lamar did not request a hearing concerning the denied application as required in Florida Administrative Code Rule 14-10.0042(3). Nor did Lamar inform the Department’s clerk in writing that it intended to rely on the deemer provision set forth in Section 120.60, Florida Statutes. Absent a Chapter 120 challenge to the Department’s action, the Department’s denial became final under Florida Administrative Code Rule 14-10.0042(3). After the denial, Lamar performed a Height Above Ground Level (HAGL) test on the proposed sign’s site. The test is used to determine whether the sign face can be seen from a particular viewing location. Lamar determined that the South face could not be seen from SR366/West Pensacola Street due to some large trees located along the West side of Ocala Road and behind the gas station in front of the sign. Pictures of the area surrounding the sign’s proposed location, filed with the 2005 permit application, show a number of trees that are considerably taller than the roof of the adjacent gas station and utility poles. These trees appear to be capable of blocking the view of the sign face from SR366/West Pensacola Street and support the results from Lamar’s HAGL test. Since the sign could not be seen from a federal aid highway, it did not require a permit. Therefore, around August or October 2005, Lamar built the subject sign on the west side of Ocala Road and 222 feet north of SR 366/West Pensacola Street in Tallahassee, Leon County, Florida. As constructed, the sign sits on a large monopole with two faces, approximately 10 1/2 feet in height and 36 feet wide. The sign’s height above ground level is 28 feet extending upwards to 40 feet. The north face of the sign does not require a permit since it can only be seen from Ocala Road. Likewise, at the time of construction and for some time thereafter, the south face of the sign did not require a permit since it was not visible from a federal aid highway. Following construction of the subject sign, some of the large trees were removed. The removal caused the south face of the sign to be clearly visible from the main traveled way of SR366/West Pensacola Street. On March 21, 2007, the sign was issued a Notice of Violation for an illegally erected sign because it did not have a permit. The Notice of Violation stated: YOU ARE HEREBY NOTIFIED that the advertising sign noted below is in violation of section 479.01, Florida Statutes. An outdoor advertising permit is required but has not been issued for this sign. The Notice cited the wrong statute and, on June 12, 2008, an amended Notice of Violation for an illegally erected sign was issued by the Department. The Amended Notice changed the statutory citation from Section 479.01 to Section 479.07, Florida Statutes. Both the original Notice and Amended Notice stated the correct basis for the violation as: "An outdoor advertising permit is required but has not been issued for this sign." On December 18, 2007, Lamar submitted a second application for an Outdoor Advertising permit for an existing sign. The application was denied on January 8, 2008, due to spacing conflicts with permitted signs BX250 and BX251. The denial cited incorrect tag numbers for the sign causing the spacing conflict. The incorrect tag numbers were brought to the attention of Mr. Strickland. The Department conducted a field inspection of the sign’s area sometime between December 20, 2007 and January 20, 2008. The inspection confirmed that the spacing conflict was caused by signs BZ685 and BZ686. The signs were within 839 feet of the subject sign and owned by Lamar. An Amended Notice of Denied Application was issued by the Department on January 24, 2008. However, the evidence was clear that the Department made the decision to deny the application based on spacing conflicts on January 8, 2008. The fact that paperwork had to be made to conform to and catch up with that decision does not change the date the Department initially acted upon Lamar’s application. Therefore, the 2007 application was acted upon within 30 days. The Department’s employee responsible for issuing violation notices is Lynn Holschuh. She confirmed that if the south sign face was completely blocked from view from the main traveled way of SR366/West Pensacola Street when it was originally constructed, a sign permit would not be required from the Department. Ms. Holschuh further testified that if a change in circumstances occurred resulting in the subject sign becoming visible from the main traveled way of Pensacola Street, the sign might be permitted by the Department as a non-conforming sign, if it met the criteria for such. In this case, the south face of the sign was once legal and did not require a permit because several large trees blocked the sign’s visibility from a federal aid highway. The removal of the trees that blocked the sign caused the sign to become visible from a federal aid highway. In short, the south sign face no longer conformed to the Florida Statutes and Rules governing such signs and now is required to have a sign permit. However, the sign has not been in continuous existence for seven years and has received a Notice of Violation since its construction in 2005. The evidence was clear that the sign does not meet the requirements to qualify as a nonconforming sign and cannot be permitted as such. Therefore, Petitioner’s application for a sign permit should be denied and the sign removed pursuant to the Notice of Violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Transportation enter a final order denying Petitioner a permit for the sign located on the west side of Ocala Road, 222 feet North of SR366/West Pensacola Street and enforcing the Notice of Violation for said sign and requiring removal of the south sign face pursuant thereto. DONE AND ENTERED this 15th day of September, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 2008. COPIES FURNISHED: Gerald S. Livingston, Esquire Pennington, Moore, Wilkinson Bell & Dunbar, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Kimberly Clark Menchion, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
The Issue The central issues in this case are whether Petitioner knowingly submitted an application with false or misleading information for the purpose of securing sign permits and, if so, whether the sign permits should be revoked.
Findings Of Fact Petitioner owns a parcel located in Brevard County, Florida, upon which it desires to construct a sign with two sides (one facing north, one facing south). The parcel is located at 4121 Norfolk Parkway, West Melbourne, Florida, and is adjacent to Interstate 95 (I-95). Respondent is the state agency charged with the responsibility of regulating outdoor advertising located within 660 feet of the state highway system, interstate, or federal-aid primary highway system. It is undisputed the parcel owned by Petitioner together with the proposed two-sided sign falls within Respondent’s jurisdiction and is adjacent to I-95. The application process for sign permits follows a specified course to assure the applicant submits all requisite information and the parcel meets the statutory guidelines. In this case, Petitioner submitted not fewer than three applications for the desired permits. Each side of the proposed sign required a permit and each permit required an application. Each of the first applications was rejected and returned to Petitioner for reasons specified by FDOT. Among the reasons Petitioner’s applications were rejected were: the applicant did not answer all questions on the applications completely; the forms were not notarized; the applications did not have a signed statement from the local government official indicating the land use designation of the parcel; and the parcel identification numbers did not match on all documents. On December 17, 2012, Petitioner completed and had notarized one or two applications for the sign permits. Only one application for each side (dated December 17, 2012) was received by Respondent. Those applications indicated the zoning for Petitioner’s parcel as commercial parkway district, an acceptable zoning for the approval of a sign permit. In truth, however, Petitioner’s parcel is zoned residential. Respondent considered the applications dated December 17, 2012, complete but they contained an error other than the incorrect zoning that needed to be corrected. Based upon that error, FDOT issued a Notice of Denial and returned the paperwork to Petitioner to have the correction initialed. Once the applications were initialed, Respondent approved the applications and issued permit numbers 56284 and 56285. The applications submitted by Petitioner did not have the correct parcel identification number. Based upon the parcel identification number on the approved applications, the sign would be constructed on a parcel not owned by Petitioner. At all times material to this case, Petitioner represented it owned the parcel upon which the sign would be constructed. The parcel identified on the approved applications is correctly zoned for an outdoor advertising sign, but Petitioner’s parcel may not be. Petitioner has never intended to construct a sign on the parcel identified by its applications. Petitioner knew on December 17, 2012, that it had submitted applications with an incorrect parcel identification number. Petitioner knew on December 17, 2012, that the zoning for its parcel was residential not commercial. When Petitioner received the documents subsequent to the Notice of Denial (identified in paragraph 6), it did not correct the parcel number or advise FDOT that the parcel number was incorrect. Although the parcel numbers now matched for each section of the applications, the number related to a parcel owned by West Melbourne Holdings, II, LLC. Petitioner has no interest in West Melbourne Holdings, II, LLC. As a result, Petitioner did not accurately represent the zoning for the parcel it owns and upon which it sought to construct its sign. FDOT relies on the information submitted by applicants to determine whether a parcel is eligible for a sign permit. If an applicant submits false information, Respondent takes action to revoke a permit that was based on false information. In this case, Petitioner began to construct a sign on its property and another sign company (Petitioner’s competitor) notified FDOT that Petitioner was constructing a sign in an inappropriate location. Upon receipt of the complaint, FDOT began a review of Petitioner’s applications and discovered the applicant did not own the parcel that was approved for the sign. Although Petitioner had submitted an accurate street address, the parcel for which the sign permits were issued was not owned by Petitioner. Additionally, FDOT discovered a zoning discrepancy that would not allow approval of permits for Petitioner’s parcel. Had Petitioner submitted the correct zoning information for its parcel, the applications may not have been approved. Petitioner maintains that inaccuracies on its applications were inadvertent and unintentional. Petitioner argues it never knowingly submitted incorrect or misleading information. Having weighed the credible evidence submitted in this cause, such argument has been rejected. To the contrary, Petitioner knew the parcel number submitted on the applications dated December 17, 2012, was false. Petitioner knew the zoning for its parcel was residential. Petitioner did nothing to correct the errors after they were known and before the permits were issued. An applicant has an affirmative duty to submit truthful, accurate information.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order revoking the permits for the subject sign. DONE AND ENTERED this 2nd day of October, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2013. COPIES FURNISHED: Gary B. Frese, Esquire Frese, Hansen, Anderson, Anderson, Heuston and Whitehead, P.A. Suite 301 2200 Front Street Melbourne, Florida 32901 Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 Trish Parsons, Clerk of Agency Proceedings Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 Ananth Prasad, Secretary Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 57 Tallahassee, Florida 32399-0450 Gerald B. Curington, General Counsel Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450
The Issue Whether Respondent properly denied Lamar Outdoor Advertising's Petition for Waiver or Variance from Florida Administrative Code Rule 14-10.007(2)(b).
Findings Of Fact Respondent is the State agency responsible for regulating outdoor advertising signs located within 660 feet of the State Highway system, interstate, or federal-aid primary system in accordance with Chapter 479, Florida Statutes. Petitioner owns and operates outdoor advertising signs in the State of Florida. In December 2004, Petitioner purchased four outdoor advertising signs adjacent to Interstate 4 in Polk County, Florida. The signs are located on lots zoned for residential use. In accordance with Section 479.111, Florida Statutes, signs adjacent to interstate highways and federal-aid primary roads are only authorized in commercial, industrial zoned or un-zoned areas. These signs are, therefore, not in conformance with Section 479.111, Florida Statutes, and are non- conforming signs. When initially permitted, the height from the ground to the bottom of the sign (referred to as "Height Above Ground Level" or "HAGL") for each of Petitioner's four signs was ten feet or less. The overall height of the signs from the ground to the top of the sign ranged from 34 to 37 feet. Respondent erected a sound attenuation barrier (soundwall) along Interstate 4 in Polk County, Florida. As a result, the signs were blocked from view by passing motorists. In August 2006, without seeking the permission of Respondent, Petitioner raised the HAGL of the four signs to a height of 18 to 23 feet above ground level to allow the signs to remain visible over the soundwall. In September 2007, Respondent issued Notices of Intent to Revoke Petitioner's permits for violations of Florida Administrative Code Rule 14-10.007(2). Previously, in 1972, an agreement was entered into between the State of Florida and the United States Department of Transportation to implement and carry out the Highway Beautification Act (HBA) by controlling outdoor advertising signs located along interstates and federal-aid primary highways. One of the purposes stated in the 1972 Agreement, was to allow Florida "to remain eligible to receive the full amount of all Federal-aid highway funds." In accordance with the Agreement, a determination that Florida failed to maintain effective control of outdoor advertising could result in a 10 percent reduction in federal highway funds. Florida Administrative Code Rule 14-10.007 was primarily drawn from the federal regulation language in 23 CFR 750.707, in effect since 1973, which provides as to non- conforming signs: (5) The sign must remain substantially the same as it was on the effective date of the State law or regulations. Reasonable repair and maintenance of the sign, including a change of advertising message, is not a change which would terminate non-conforming rights. Each State shall develop its own criteria to determine when customary maintenance ceases and a substantial change has occurred which would terminate non- conforming rights. In November 2007, after receiving the Notices of Intent to Revoke Permits, Petitioner filed a Petition for Variance from Respondent to authorize the raising of these four signs blocked by a noise attenuation barrier. Thereafter, Respondent notified the Division Administrator for the Federal Highway Administration (FHWA) that a request for a variance had been received from Petitioner. By letter dated January 7, 2008, FHWA was asked (1) if it had developed any minimum criteria as to when a substantial change had occurred to a non-conforming sign as prohibited by federal regulations and (2) if no minimum criteria were established, whether a variance from an existing rule could be granted to allow a non-conforming sign to be increased in height as minimally necessary to be seen over a noise attenuation barrier. By letter dated February 5, 2008, FHWA responded that "a minimum Federal criteria has not been established," and "an increase in height is considered an expansion or improvement, which is not allowed for non-conforming signs." The letter concluded: To summarize, the HBA and its implementing regulations do not permit the adjustment of a non-conforming sign where action by the State transportation agency obstructs the visibility of the sign from the highway. As such, the FHWA would expect FDOT to deny the request for a variance from the provisions of Florida Administrative Code Rule 14- 10.007(2). FHWA's February 2008, correspondence was not its first attempt to address modifications to non-conforming signs. By letter dated June 15, 2000, FHWA informed the Florida Department of Transportation that non-conforming signs were not permitted to be raised to be seen over a noise wall, stating: Federal regulations require that non- conforming signs must remain substantially the same as they are on the effective date of the State law or regulations enacted to control them. FDOT is required to develop its own criteria to determine when customary maintenance ceases and a substantial change has occurred which would terminate non- conforming rights. In this instance, we believe raising the sign above the wall would constitute a substantial change and appreciate that FDOT has come to the same conclusion. In September 2000, Respondent asked FHWA if non- conforming signs could be reduced in size or height when required by local ordinance. FHWA agreed to allow a reduction in height for non-conforming signs, if required by local ordinaces. Later in 2000, FHWA also authorized the addition of catwalks or other fall-protection devices to non-conforming signs provided such addition does not increase the structural integrity of the sign or prolong the life of the sign. Respondent's rules were amended accordingly to allow non- conforming signs to be reduced in size when required by a local ordinance and catwalks and other fall-protection devices to be added provided they did not increase the signs' structural integrity. Fla. Admin. Code R. 14-10.007(a)(2), and (2)(b)(1). In December 2003, Respondent sought FHWA concurrence on amending Rule 14-10.007 to allow sign owners to submit a request to raise a non-conforming sign when a noise attenuation barrier screens or blocks the sign. The text of the proposed rule provided that any requests approved by Respondent would be forwarded to FHWA for final acceptance. In March 2005, FHWA responded through a memorandum providing: "Guidance on Adjustment of Non-Conforming Outdoor Advertising Signs." As background, the memorandum noted: With the broader use of noise walls around the country, the conflict between HBA prohibition against substantial improvement of non-conforming signs and sign owners' demands to maintain sign visibility is arising with increasing frequency. In analysis and guidance, the memorandum stated: Current FHWA regulations permit a non- conforming sign to remain "at its particular location for the duration of its normal life subject to customary maintenance." 23 CFR 750.707(c). The intent of the HBA is to permit a non-conforming sign to continue in place until it is destroyed, abandoned, or discontinued, or is removed by the State (which can use 75 percent Federal funding for the removal of the sign). A non- conforming sign must "remain substantially the same as it was on the effective date of the State law or regulations" adopted to implement the HBA. 23 CFR 750.707(d)(5). A height increase is an expansion and improvement of a sign. In addition, increasing sign height to clear a noise wall typically will require new structural measures, such as a monopole design, that would be inconsistent with the concept of limiting non-conforming signs to the duration of their normal lives. The memorandum concluded with the admonition: "If a State fails to comply with the non-conforming sign provisions of the HBA, it will become necessary to evaluate whether the State is maintaining effective control." On February 25, 2008, Respondent entered an Order Denying Petitioner's Petition for Variance or Waiver, noting: "FHWA has consistently advised Respondent that any increase in height of a non-conforming sign would be a substantial change under the federal regulation." As the underlying purpose of the laws implementing Rule 14-10.007, was to implement and enforce the federal-state Agreement, the HBA of 1965, and federal regulations, Respondent concluded that "Petitioner has not offered any contrary basis for Respondent to conclude that the purpose of the laws underlying the rule can be achieved with a variance." The Order Denying the Petition for Variance or Waiver went on to state that Petitioner has not established a substantial hardship as the affected signs were all over 30 years old and represented only four of the 900 signs owned by Lamar Outdoor Advertising - Lakeland. Lastly, Respondent cited to several cases for the proposition that a sign owner does not have a right to be seen by passing motorists and concluded: Any value Petitioner derived from having signs visible from Interstate 4 was also based on an artificially created condition established in an exercise of the state's police power for the benefit of the traveling public. Principles of fairness do not compel Respondent to waive its rules and risk the loss of federal funds so that Petitioner can continue receiving the same state-sponsored benefit of passing motorists that the signs enjoyed before the soundwall was erected. Petitioner is subject to and affected by the rule in the same manner as every other sign owner who might wish to construct improvements to a non-conforming sign to enhance or maintain its economic vitality.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying Petitioner's Request for a Waiver or Variance. DONE AND ENTERED this 7th day of October, 2008, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2008.
Findings Of Fact Respondent, Maxmedia Outdoor Advertising, Inc., owns and maintains a V- shaped sign located on State Road 551 (Goldenrod Road) in Orange County, Florida, north of State Road 50. State outdoor advertising sign permits were obtained for both sides of the "V" in May 1986. The applications for permit stated that the sign was 15 feet from the right-of- way. Sometime prior to June 1, 1989, Department of Transportation (DOT) Outdoor Advertising Inspector, Michael Dollery, inspected the sign in question. He found that no state permits were displayed and that the sign encroached on the state right-of-way. A follow-up inspection was conducted on September 15, 1989, and the same findings were made. In determining that the sign encroached on the right-of-way, the inspector utilized a DOT right-of-way survey map (Petitioner's Exhibit #4), prepared in 1987, approved on 5/12/88, and updated most recently on 5/8/89. The inspector also located a right-of-way survey marker in the field and photographed the sign in relation to the marker. Both the survey and photograph plainly indicate that approximately five feet of both sides of the "V" extend into the right-of-way. Since the sign has two sides and two permits, separate violation notices were issued. The two violation notices are the subject of Division of Administrative Hearings cases #89-3819T and #89-3820T. Respondent does not contest the DOT survey and did not object to its admissibility. He did not produce his own survey nor any basis for his contention that the sign was proper at the time of erection. In DOAH Case #89-3821T, the sign at issue is located within the incorporated limits of the City of Lake Mary in Seminole County, Florida, at an interchange of 1-4 and Lake Mary Boulevard. The sign is owned and maintained by Respondent, Maxmedia. It is "V" shaped, with the apex of the "V" pointing at Lake Mary Boulevard. It is within 660 feet of the interstate (I-4) and is approximately 850 feet from a 2-faced permitted billboard located across Lake Mary Boulevard. The sign is 20 feet high. DOT has no record of a permit for this sign, nor was one displayed at the time of inspection. DOT's District Outdoor Administrator claims that the sign is visible from the main travel-way of 1-4. DOT issued its notice of violation only for the west face of the sign, since that is the side which faces the interstate. As depicted on a DOT right-of-way survey (Petitioner's Exhibit #8), the offending face of the sign runs lengthwise, parallel to 1-4. Respondent claims that the sign was purposefully built only 20 feet high, instead of the more common 50 feet, so that it would not be visible from 1-4. The sign was placed to be read from Lake Mary Boulevard. Respondent submitted a series of photographs taken from 1-4 and from Lake Mary Boulevard, including the portion of Lake Mary Boulevard overpass over 1-4. The sign is distinctly lower than the other signs which are visible from 1-4. The sign is visible from Lake Mary Boulevard but is obscured by the tree line when viewed from 1-4. Even assuming that the subject sign structure could be viewed from 1-4, a passer-by on 1-4 would have to quickly turn and crane his neck to read the sign, given its parallel orientation. Respondent claims that the placement of the sign was based on a consultation, on-site, with DOT's former District Supervisor, Oscar Irwin, who concurred that the sign would not be an "Interstate 4 reader." The sign was permitted by the City of Lake Mary on October 17, 1984. According to the federal highway system map of Seminole County (Petitioner's Exhibit #6) Lake Mary Boulevard is not part of the federal-aid primary highway system.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered requiring that the sign in Cases #89-3819T and #89-3820T be removed, and dismissing the notice of violations in Case #89- 3821T. DONE AND RECOMMENDED this 27th day of October, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1989. COPIES FURNISHED: Vernon L. Whittier, Jr., Attorney Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Mac Davidson Maxmedia Outdoor Advertising Post Office Box 847 Winter Park, Florida 32790 Ben G. Watts, P.E., Interim Secretary Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issue in this case is whether the Department of Transportation's Notice of Intent to Revoke Sign Permit should be upheld pursuant to Section 479.04, Florida Statutes (2006).1
Findings Of Fact Lamar is a company which owns and maintains road-side signs, signboards or billboards within the State of Florida. One such billboard (referred to hereinafter as the "Sign") is located on U.S. Highway 41 approximately three-tenths of a mile north of Tuckers Boulevard in Charlotte County. The Sign was given Permit Number 5202 by DOT. This Sign is a nonconforming sign, meaning that it was lawfully erected but does not comply with state or local laws enacted after it was built. DOT conducted a statewide inventory of signs in 1998 and established a database for use in monitoring nonconforming signs in the future. The database includes the type of sign; its date and method of construction; the height, including the Height Above Ground Level (HAGL); its location; whether the sign is lighted or not; and other identifying information about the sign. The inventory of signs is updated at least every two years, but generally is done on an annual basis. On August 13, 2004, during Hurricane Charley, the Sign sustained damage, which required certain repairs. Repairs of nonconforming signs is allowed, but signs are not supposed to be structurally changed during the repair. Petitioner undertook a repair of the Sign. During the course of the repairs, the Sign underwent two changes. One, the HAGL of the sign went from two feet to approximately five feet. HAGL is the distance from the ground to the bottom of the lowest sign face. Two, the Sign was repaired using four support poles instead of the three poles it had when it became nonconforming. Based upon information contained in its database, DOT concluded that the repairs resulted in unauthorized structural changes. DOT issued a Notice of Intent to Revoke Sign Permit (the "Notice") on March 21, 2006. The Notice alleged the Sign had been structurally altered and was no longer the same as when it had become nonconforming. The Notice cited Florida Administrative Code Rule 14-10.007(2)(a) as the basis for the intent to revoke. That Rule relates to modifications of a sign "such as conversion of a back-to-back sign to V type, or conversion of a wooden sign structure to a metal structure . . .". The Notice included a statement that revocation of the sign permit would become final in 30 days, unless Lamar either: (1) provided information to DOT sufficient to resolve the issue or (2) requested an administrative hearing. Lamar availed itself of the second option and, timely, filed a Petition for Formal Administrative Hearing. The DOT Notice did not specify exactly which changes to the Sign constituted a violation of Department rules. It merely cited to Florida Administrative Code Rule 14-10.007(2)(a). During the discovery phase of this action, Lamar ascertained that the violations were: (1) the HAGL had been raised from two feet to over five feet; and (2) there were four support posts instead of the original three. This information was discovered by Lamar as a result of interrogatory responses from DOT. The interrogatories had been propounded on September 22, 2006, but were not answered until December 13, 2006, some 82 days later. Upon determining the exact nature of the violation, Lamar undertook to have the repairs corrected so that the Sign was set at the correct HAGL of two feet and one support post was removed. The correcting construction work was accomplished within seven days of discovering the nature of DOT's complaint. As of the date of the final hearing, the Sign had been returned to its condition as of the date it became nonconforming.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Transportation withdrawing its Notice of Intent to Revoke Sign Permit. DONE AND ENTERED this 20th day of February, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2007.
The Issue At issue is whether the permits Respondent holds to maintain two outdoor advertising signs should be cancelled, and whether the signs Respondent repaired and reerected following the destruction of the original signs by an Act of God (a hurricane) should be removed, as alleged in the Notices of Violation.
Findings Of Fact The parties Petitioner, Department of Transportation (Department), is a state agency charged with, inter alia, the duty and responsibility to regulate outdoor advertising signs under the provisions of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code. Respondent, National Advertising Company, is a corporation engaged in the business of erecting and maintaining outdoor advertising signs. Pertinent to this case, Respondent is the owner and operator of two nonconforming outdoor advertising sign structures located adjacent to the Florida Turnpike (SR 91) in Palm Beach County, Florida. The first structure is a double-faced sign permitted by the Department under Permit Numbers AZ 363 and AE 401 and located .83 miles south of mile post 85, on the west side of the turnpike. The second structure is a single-faced sign permitted by the Department under Permit Number BT 386 and located .7 miles south of mile post 85, on the west side of the turnpike. In October 1999, both the single-faced and double-faced signs were damaged by Hurricane Irene. That damage included the severance of all upright supports (wood poles) for the sign structure, as well as other damage discussed infra. Respondent repaired and reerected the signs. Here, the Department contends the nonconforming signs were "destroyed," as that term is defined by Rule 14- 10.007(1)(d), Florida Administrative Code, and may not be replaced. Respondent disagrees that the signs were "destroyed" and is, therefore, of the opinion that they were properly reestablished. The rule regarding maintenance and repair of nonconforming signs With regard to the maintenance and repair of nonconforming signs, Rule 14-10.007, Florida Administrative Code, provides: The following shall apply to nonconforming signs: A nonconforming sign must remain substantially the same as it was as of the date it became nonconforming. Reasonable repair and maintenance, including change of advertising message, is permitted and is not a change which would terminate nonconforming rights . . . . * * * A nonconforming sign which is destroyed may not be reerected. "Destroyed" is defined as when more than 50% of the upright supports of a sign structure are physically damaged such that normal repair practices of the industry would call for, in the case of wooden sign structures, replacement of the broken supports and, in the case of a metal sign structure, replacement of at least 25% of the length above ground of each broken, bent or twisted support. However, in the event that such damage occurs, a sign will not be considered destroyed if the sign owner shows that the replacement materials costs to reerect the sign would not exceed 50% of the value of the structural materials in the sign, immediately prior to destruction. The following shall be applicable in determining whether the replacement materials costs to reerect the sign exceed 50% of the value of the structural materials in the sign: Structural materials shall not include the sign face, any skirt, any electrical service, electric lighting or other non- structural items. Structural materials shall include any support brackets for the face, any catwalk, and any supporting braces or members of the sign structure. The value of the structural materials in the sign immediately prior to destruction shall be based on the cost of all structural materials contained in the sign as it was configured just prior to damage, and the cost of such materials shall be based on normal market cost as if purchased new on or about the date of destruction, without regard to any labor costs or special market conditions. The materials to be included in the replacement materials costs to reerect the sign shall be all materials that would be used to return the sign to its configuration immediately prior to destruction and shall not include any material that is repaired on-site, but shall include any material obtained from a source other than the sign itself, whether used, recycled, or repaired. The repairs to the sign shall be with like materials and shall be those reasonably necessary to permanently repair the sign in a manner normally accomplished by the industry in that area. The cost of such materials shall be as described in paragraph (1)(d)2 . . . . Here, with regard to the signs at issue, the proof is uncontroverted that all the upright supports of both sign structures were so severely damaged as to require replacement. Consequently, it has been shown that the signs were "destroyed" unless Respondent can establish "that the replacement materials costs to reerect the sign . . . [did] not exceed 50% of the value of the structural materials in the sign, immediately prior to destruction." The replacement materials costs to reerect the double-faced sign The value of the "instructional materials" in the double-faced sign immediately prior to destruction, based on all structural materials contained in the sign as it was configured just prior to damage, consisted of 10 wooden poles (upright supports) at $156.98 each; 28 wooden stringers (14 stringers per face) at $8.97 each; 2 galvanized steel catwalks (one on each side of the sign) at $1,400.00 each; and various angle steel supports for the catwalks, the value of which was not established of record. So configured, the value of the structural materials in the double-faced sign prior to destruction, excluding the value of the angle steel supports, totaled $4,620.96. The materials cost to reerect the sign (by returning the sign to its configuration immediately prior to destruction) consisted of 10 wooden poles at $156.98 each and 28 wooden stringers at $8.97 each, a total cost of $1,820.96. Excluded from the materials cost to reerect the sign was the value of the catwalks and angle steel supports which were recycled from the sign itself and, as necessary, repaired on-site. Comparing the value of the structural materials of the double-faced sign immediately prior to destruction (at least $4,620.96), with the replacement materials costs to reerect the sign, but excluding materials recycled on-site ($1,820.96), demonstrates that the replacement materials costs to reerect the sign did not exceed 50 percent of the structural materials in the sign, immediately prior to destruction. Consequently, under the provisions of Rule 14-10.007(1)(d), Florida Administrative Code, the double-faced sign is not considered destroyed, and was properly reerected. The replacement materials costs to reerect the single-faced sign The value of the "structural materials" in the single- faced sign immediately prior to destruction, based on all structural materials contained in the sign as it was configured just prior to damage, consisted of 10 wooden poles at $156.98 each; 14 wooden stringers at $8.97 each; 1 galvanized steel catwalk at a minimum value of $700.00; 5/ and various angle steel supports for the catwalk, the value of which was not established of record. So configured, the value of the structural materials in the single-faced sign prior to destruction, excluding the value of the angle steel supports and valuing the catwalk at $700.00, was $2,395.38. The materials costs to reerect the sign (by returning the sign to its configuration immediately prior to destruction) consisted of 10 wooden poles at $156.98 each, 14 wooden stringers at $8.97 each; and 1 galvanized catwalk at a minimum value of $700.00, a total cost of $2,395.38 (provided the value of the catwalk, as offered by Respondent, is accepted). Excluded from the materials costs to reerect the sign was the value of the angle steel supports which were recycled on-site. Comparing the value of the structural materials of the single-faced sign immediately prior to destruction ($2,395.38), with the replacement materials costs to reerect the sign, but excluding materials recycled on-site ($2,395.38), demonstrates that the replacement materials costs to reerect the sign exceeded 50 percent of the structural materials in the sign, immediately prior to destruction. Consequently, under the provisions of Rule 14-10.007(1)(d), Florida Administrative Code, the single-faced sign was destroyed, and was could not properly be reerected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which adopts the foregoing Findings of Fact and Conclusions of Law; which dismisses the notices of violation with regard to the double- faced sign (DOT Case Nos. 99-0263 and 99-0293, DOAH Case Nos. 99-4905T and 00-0134T); and which sustains the notices of violation with regard to the single-faced sign (DOT Case Nos. 99-0264 and 00-0026, DOAH Case Nos. 99-4906T and 00-0826T), cancels the single-faced sign permit, and orders the removal of the reerected single-faced sign. DONE AND ENTERED this 1st day of June, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The despot Building 1230 Appalachia Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNOCO 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2000.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the agency head enter a final order permitting the voluntary removal of the advertising structure within 30 days of the date of the agency head's final order, and directing employees of the Department of Transportation to remove the structure after the 30-day period without compensation to the owner. DONE and ORDERED this 31st day of October, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Hayden Burns Building Tallahassee, FlorIda 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 3115 Marianna, Florida 32446 Charles M. Wynn, Esquire 310 East Jackson Street Post Office Box 793 Marianna, Florida 32446
